Recent vacancies on the U.S. Court of Appeals for the 11th Circuit (GA, AL, FL) forces Chief Judge Carnes to declare an “emergency” situation, and allow two visiting judges on three-judge panels. Article 1/13/2014 by Alyson M. Palmer, Daily Report

Lawyers appearing before the U.S. Court of Appeals for the Eleventh Circuit may soon see more unfamiliar faces when they look up at the bench.

The court’s chief judge has declared an emergency, such that cases may be decided by three-judge panels composed of only one of the court’s judges, plus two visiting judges.

“We’ve got eight judges on a 12-judge court,” said Chief Judge Edward Carnes, explaining the order he issued on Dec. 30.

The four vacancies on the court occurred when judges decided to leave the court or take senior status. President Barack Obama has made nominations for three of the four openings, but there is no guarantee if or when they’ll be confirmed by the Senate. Two Georgia-based vacancies date to 2010 and 2012, while openings arose in Florida and Alabama last fall.

Federal law says that when federal appeals courts decide cases by three-judge panels, at least two of the judges must be members of that particular appeals court. Although the Eleventh Circuit generally does not use judges from outside of its membership to decide the cases it decides without oral argument—about 80 percent of the court’s decisions, Carnes said—it liberally uses visiting judges for its oral argument calendar. Sometimes an oral argument panel might even comprise a fully active member of the Eleventh Circuit, one of the court’s senior judges on a reduced caseload and a visiting judge from outside the court. Usually, visiting judges are district court judges from within the Eleventh Circuit’s territory or senior federal judges from outside the circuit.

But the federal rule requiring a majority of a three-judge panel to come from the circuit’s membership has exceptions, including that the chief judge can certify that there is an “emergency.” The statute, 28 U.S.C. § 46(b), says such emergencies include, but are not limited to, the unavailability of a judge of the court because of illness.

The court’s calendar includes several oral argument sessions with slots allocated for as yet unnamed new judges, Carnes said. Under the court’s rules, a schedule assigning judges to hear oral arguments is set for an entire court year. (The court’s year runs from October through September, Carnes explained.) The clerk’s office plugs cases into the schedule later, closer to the week of oral argument. For a number of oral argument weeks, Carnes said, a panel is set to comprise an Eleventh Circuit judge, a visiting judge, and a new judge.

In the fall, said Carnes, some Eleventh Circuit judges filled in the spots allocated to new judges. But, he added, “We can’t ask our active judges any more. We’re just all so darn busy.”

Carnes said the emergency order hasn’t affected any decisions yet. As for when it will come into play, the Eleventh Circuit has strict rules about revealing the identity of panel members much in advance of oral argument sessions, but Carnes allowed that he held off issuing the order until it was necessary to allow for preparation by the visiting judges.

“It’s a rule for a good reason,” he added. “You want a majority of each panel composed of members of the court if you can.” Carnes noted that the Eleventh Circuit does not use visiting judges for death penalty cases.

For years, a majority of the Eleventh Circuit’s judges have resisted increasing the size of the court, saying adding to the court’s membership would dilute the court’s collegiality or prestige or make it more difficult to preserve the stability and cohesiveness of the court’s precedent. Carnes said that if the court actually had all 12 of its spots filled, there would be no need for the emergency measure. “It would be worth trying to have a court with 12 judges on it again,” he said.

Stanley Birch, whose 2010 retirement from the Eleventh Circuit created one of the lingering vacancies, said that in his experience visiting judges do not defer on legal matters to the Eleventh Circuit judges with which they sit. “They have pretty strong views, and they’re going to air their views,” Birch said of visiting judges.

Birch, now acting as a neutral in mediations and arbitrations, said it’s possible having panels with two visiting judges will cause the court to take up a few more cases as a whole court sitting en banc. “It will be well done and well heard,” he said. “But members of the court will have to be—I don’t want to say more scrupulous, but they’ll be more attuned to looking at panel opinions where there’s only one circuit judge on there.”

Carnes said that as soon as new judges are confirmed and sworn in, they can be dropped into the “new judge” slots on the calendar, although once a case is argued, it would not be passed off to a new judge.

Carnes’ order says it will remain in effect until he or another judge authorized to act as chief declares that an emergency under § 46(b) no longer exists. Carnes said he doesn’t have in mind a specific number of active judges the court must have before he would lift the order. “I can’t imagine it continuing after we have 12 judges,” he said.

Obama has nominated U.S. District Judge Robin Rosenbaum for the Florida vacancy and Chief U.S. District Judge Julie Carnes and Bondurant Mixson & Elmore partner Jill Pryor for the Georgia-based openings. All are awaiting hearings before the Senate Judiciary Committee. The president has yet to announce a nominee for the Alabama vacancy.